Excerpt:tenancy - decreed amount - section 3 of u.p. (temporary control of rent and eviction) act, 1947 and sections 100, 101 and 146, order 7, rule 11 and order 21, rule 1 of code of civil procedure, 1908 - decree passed for payment of arrears against tenant - amount deposited in court within one month of service of notice - no mode of payment prescribed - landlord filed suit for non-payment - no cause of action lies - mode of payment well within the ambit of law. - - it is not necessary to reiterate the facts of the case which are clearly contained in his judgment. the result was that no arrears of rent remained due from the defendant at the time of the institution of the suit consequently, there could be no default or failure on the part of the tenant to pay any arrears of rent, as none.....gyanendra kumar, j.1. i have had the advantage of reading the judgment of trivedi, j. it is not necessary to reiterate the facts of the case which are clearly contained in his judgment. however, it may be recollected that the trial court had dismissed the suit in toto. but on appeal, it was decreed by the civil judge, who granted three reliefs to the plaintiff, viz. (a) ejectment of the defendant behari lal (since deceased) from the premises in question, (b) recovery of rs. 41/- as arrears of rent from 22-10-1958 to 14-12-1958 and (c) recovery of damages for use and occupation at the rate of rs. 23/- per month from the date of termination of tenancy to the date of defendant's ejectment2. it cannot be doubted that so far as the decree for arrears of rent and damages for use and occupation.....

Judgment:

Gyanendra Kumar, J.

1. I have had the advantage of reading the judgment of Trivedi, J. It is not necessary to reiterate the facts of the case which are clearly contained in his judgment. However, it may be recollected that the trial Court had dismissed the suit in toto. But on appeal, it was decreed by the Civil Judge, who granted three reliefs to the plaintiff, viz. (a) ejectment of the defendant Behari Lal (since deceased) from the premises in question, (b) recovery of Rs. 41/- as arrears of rent from 22-10-1958 to 14-12-1958 and (c) recovery of damages for use and occupation at the rate of Rs. 23/- per month from the date of termination of tenancy to the date of defendant's ejectment

2. It cannot be doubted that so far as the decree for arrears of rent and damages for use and occupation is concerned, the present appellants (who are the personal heirs and legal representatives of the deceased defendant, Behari Lal) would be liable to pay the same to the extent of the assets inherited by them from the deceased. I, therefore, respectfully agree with the finding of my brother Trivedi that they were competent to file the instant second appeal in this Court

3. I further agree that the deposit of the decretal amount of arrears of rent by Behari Lal, under Order XXI, Rule 1, C.P.C., within one month of the receipt of the notice of demand, amounted to valid payment to the landlord decree-holder himself, within the meaning of Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act. It may also be remembered that the subsequent arrears of rent had further been directly paid by the defendant to the landlord, within one month of the aforesaid notice. The result was that no arrears of rent remained due from the defendant at the time of the institution of the suit Consequently, there could be no default or failure on the part of the tenant to pay any arrears of rent, as none existed at the time of the filing of the suit That being so, the landlord had no cause of action for instituting the suit either for ejectment or for recovery of rent and damages on the ground of alleged default of the tenant in payment of rent, in spite of notice of demand.

4. Under Section 3 of the Act there was also a statutory bar against the institution of such a suit. In fact, Trivedi, J. has himself observed: 'In view of my finding that Behari Lal did not commit any default within the meaning of Section 3 of the Act, no suit for his ejectment could have been legally filed. If Behari Lal could not be ejected, his status continued to be that of a tenant with, the result that a decree for mesne profits could not have been passed against him.' Towards the end of his judgment, Trivedi, J. again held that the decree in question 'was a wrong decree' and that 'the suit was not maintainable'. Needless to repeat that inasmuch as there were no arrears of rent due against the defendant and he still continued to be a statutory tenant, in spite of the termination of his contractual tenancy under the Transfer of Property Act, there was no case for ejectment of the tenant and recovery of arrears of rent, much less for mesne profits. Thus it proved to be a case of total want of cause of action or right of suit in the plaintiff, so far as it was based on the ground of supposed default of payment of arrears of rent by the tenant.

5. Undoubtedly an appeal is a projection of the suit and the suit can still be said to be pending decision in this second appeal. It has been argued on behalf of the appellants that Clause (a) of Order VII, Rule 11, C.P.C., inter alia, provides that 'the plaint shall be rejected ..... where it does not disclose a cause of action'. This is a mandatory provision of law which goes to the root of the matter and the Court has no option but to reject the plaint where there is total want of cause of action, as is alleged to be the position in this case. Therefore, it is urged that there was no valid plaint or suit in the present case before the Court below and, therefore, no decree could have legally been passed on the basis of such a plaint, which did not disclose any cause of action and had to be rejected.

6. Initially I was impressed by the above argument and was inclined to accept the same but on closer scrutiny I find that there is a clear distinction between a case where the plaint itself does not disclose any cause of action and a case in which, after the parties have produced oral and documentary evidence, the Court, on consideration of the entire material on record, comes to the conclusion that there was no cause of action for the suit. In the latter case, obviously, the plaint cannot be rejected under Order VII, Rule 11, C.P.C. The instant one is a case where on the face of the plaint it could not be said that it did not disclose any cause of action. It was after the entire evidence had been led and documents produced in the case considered that the trial Court came to the conclusion that in point of fact and law it had not been proved that the tenant had committed any default in payment of arrears of rent within the statutory period, so as to expose him to the penalty of eviction from the accommodation, on the ground of his alleged default in payment of rent, after the receipt of the notice of demand. The above argument of the appellants, though plausible, has no substance and has to be rejected, because it is a case where it was ultimately proved that there was no cause of action for the suit and not a case where the plaint itself did not disclose a cause of action.

7. At any rate, once It has been held that the appellants have a right of appeal to this Court, they cannot be stopped from challenging the decree for arrears of rent and damages for use and occupation, inter alia, on the ground that the suit was not at all maintainable against their predecessor-in-interest, as it was proved that there was no default on his part and consequently, there was no cause of action for the suit as such and also because there was an absolute statutory bar against the institution of such a suit, in terms of Section 3 of the Act.

8. With the profoundest respect to my learned brother Trivedi, I cannot persuade myself to agree with the proposition that even though no suit, giving rise to the present appeal, could lie and the consequent decree was also illegal and wrong, yet the appellants could not challenge the same notwithstanding that they are liable at least for the money part of the decree and have a right to institute the present appeal. As indicated above, they can obviously challenge the money decree for arrears of rent and so-called damages for use and occupation on the ground that there was no cause of action for such a suit. In these circumstances, there can be no question of maintaining the decree for ejectment, when such a decree did not exist in the eve of law. A fortiori there also cannot be any question of such a decree exhausting itself on account of the death of Behari Lal, for before it could exhaust itself, it must have had a legal existence, which was totally wanting in this case.

9. I find that Trivedi, J. has only set aside the decree for mesne profits, but he has not said anything about the decree for arrears of rent granted to the plaintiff by the lower appellate Court, even though, as held above, there were no actionable arrears due from the defendant at the time of the lodging of the suit. In my view, the suit has to be dismissed in its entirety for want of cause of action and this appeal has to be allowed as a whole, with costs throughout, and it has further to be declared that no valid and legal decree ever came into existence.

Trivedi, J.

10. This defendant's second appeal is against a decree for ejectment and recovery of arrears of rent and mesne profits, passed by the lower appellate Court.

11. Behari Lal, the predecessor of the appellants, was the tenant and respondent No. 1 Smt. Chandrawati was the landlord of the premises in suit Behari Lal was in arrears of rent and in suit No. 822 of 1957 filed by the landlord a decree for arrears of rent was passed against him. The decretal amount remained unsatisfied. The plaintiff respondent then served a composite notice under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter called the Act) and Section 106 of the Transfer of Property Act, on November 14, 1958, on Behari Lal asking him to pay the decreed sum together with the rent that had fallen in arrears for the period beginning from 22-10-1957 to 21-10-1958, within one month of the receipt of the notice. Behari Lal paid the rent that was due for the aforesaid period within one month of the receipt of the notice. However, the amount due under the rent decree of 1957 was not paid to the landlord but was deposited in Court in satisfaction of the decree, under Order XXI, Rule 1, C.P.C.

12. The plaintiff respondent then filed the suit, giving rise to this appeal, on 16-12-1958 for ejectment, for arrears of rent and for damages for use and occupation with the allegation that Behari Lal defendant was liable to ejectment, as he had failed to make the payment of the entire arrears of rent, as required under Section 3 of the Act, within one month from the date of receipt of the notice of demand. Relief for ejectment was also claimed on other ground with which this Court is not concerned in this appeal. Behari Lal contested the suit by alleging that he, having deposited the decretal amount of the previous suit under Order XXI, Rule 1, C.P.C., was not liable to ejectment from the premises. The trial Court dismissed the plaintiff's suit. However, the lower appellate Court decreed the plaintiff's suit holding that the satisfaction of the decree under Order XXI, Rule 1, C.P.C. did not amount to payment of the arrears to the landlord within Section 3 of the Act

13. The appeal was decided by the lower appellate Court on 4-2-1963. Behari Lal died thereafter before the second appeal could be filed. The appellants, who are the heirs of Behari Lal, then filed this second appeal under Chapter X, Rule 1, Rules of Court.

14. It has been contended by Shri K. L. Misra, learned counsel for the appellants that the deposit of the decretal amount under Order XXI, Rule 1, C.P.C. did amount to valid payment under Section 3 of the Act. Shri K. C. Saxena, learned counsel for the respondent, while supporting the judgment of the lower appellate Court has contended that the tenancy of Behari Lal was terminated by a notice under Section 106 of the Transfer of Property Act and on the expiry of the period of notice, the status of Behari Lal was that of a mere statutory tenant which was non-heritable. He contends that Behari Lal having died after the decree of the lower appellate Court, the appellants are precluded from challenging the decree of ejectment passed against the deceased. The essence of his arguments is that Section 3 of the Act only restricts the filing of a suit for ejectment of a tenant but it does not restrict the right of a landlord to determine the tenancy created under the Transfer of Property Act. According to him, the tenancy can be determined by a notice under Section 106 of the Transfer of Property Act, whereafter the status of a tenant would be reduced to that of a mere statutory tenant, terminable on his death. In support of his arguments he has placed reliance on Ganga Dutt v. Kartik Chandra Das, AIR 1961 SC 1067: Anand Nivas v. Anandji, AIR 1965 SC 414 and Smt. Bhartoo v. Mt. Asa Devi, 1966 All WR (HC) 55. I will revert to this problem a little later.

15. The first question for determination is whether the deposit of the decretal amount under Order 21, Rule 1, C. P. C., made within one month of the service of notice of demand will amount to payment of that amount to the landlord within the meaning of Section 3 of the Act. Section 3 provides that no suit shall without the permission of the District Magistrate be filed in a Civil Court for the eviction of a tenant except on the ground, inter alia, that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of the notice of demand. It is not disputed by the parties that the nature of the arrears was not changed, by passing of a decree for the same. All that is contended is that the payment of arrears to the landlord required by the aforesaid section means actual payment to the landlord and a deposit of the amount in Court under Order 21, Rule 1, Civil P. C. could not amount to payment to the landlord. The learned counsel attempted to establish the correctness of the proposition by referring to Section 7-C of the Act. His argument is that where the Legislature wanted that the method of payment to the landlord would also be by deposit of the amount in Court it has expressly said so. But in relation to Section 3 (a) of the Act, the Legislature has not said so and, therefore, according to him, the payment of arrears to the landlord, within the meaning of Section 3 (a) has actually to be made to the landlord himself. I do not find any force in this submission of the learned counsel for the respondent. Order 21, Rule 1, Civil P. C., as amended by this Court, reads thus:--

'(1) All money payable under a decree shall be paid as follows, namely.

(a) into the Court whose duty it is to execute the decree; or

(b) out of Court to the decree-holder; or

(c) otherwise as the Court which made the decree directs.

(2) Where any payment is made under Clause (a) of Sub-rule (1) notice of such payment shall be given to the decree-holder,'

This rule shows that one of the modes of payment of the decretal amount to the decree-holder is by depositing it in Court. The additional requirement of Section 3 of the Act is that the amount should be paid within a month of the service of notice of demand, if the tenant wants to escape the penalty of ejectment. However, no mode of payment is prescribed in Section 3 or any other section of the Act. Section 3 only says that payment of arrears should be made to the landlord. Hence if the landlord also happens to be the decree-holder of the amount of rent, the same can be paid by deposit of the decretal amount in Court, which will amount to payment to the landlord. The lower appellate Court was, therefore, wrong in holding that the deposit under Order 21, Rule 1, Civil P. C. did not amount to payment of arrears to the landlord, within the meaning of Section 3 of the Act.

16. The admitted or proved facts are that a composite notice under Section 106 of the Transfer of Property Act read with Section 3 of the Act was given to Behari Lal on 13-11-1958 and was served on him the next day. The suit out of which this appeal arises was filed on 18-12-1958. The lower appellate Court decreed the suit on 4-2-1963. The decree under appeal is one for ejectment, arrears of rent and damages for use and occupation. Behari Lal died shortly after the decree of the lower appellate Court and this appeal was filed on behalf of his heirs under Chapter X, Rule 1, Rules of Court read with Section 146, Civil P. C. As stated above, the contention of the learned counsel for the respondent is that the tenancy of Behari Lal having been terminated, his status after the notice of termination was that of a bare statutory tenant liable to ejectment under the Act. And inasmuch as Behari Lal died without leaving any heritable claim to tenancy, his heirs cannot prosecute the appeal. Section 146 of the Code of Civil Procedure lays down that:--

'Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him.'

Under Rule 1, Chapter X, Rules of Court, a right is given to any legal representative whose interest is affected to appeal from such a decree. The question for determination, therefore, is whether the heirs of Behari Lal, who have filed this second appeal, can be said to be persons claiming under Behari Lal or whose rights are affected by a decree passed against Behari Lal. The decree against Behari Lal was for rent for a specified period, mesne profits thereafter and ejectment. The accrual of mesne profits was dependent on the question whether the status of Behari Lal continued to be that of a tenant or not. In view of my finding that Behari Lal did not commit any default, within the meaning of Section 3 of the Act, no suit for his ejectment could have been legally filed. If Behari Lal could not be ejected, his status continued to be that of a tenant, with the result that a decree for mesne profits could not have been passed against him. The appellants, who are the heirs of Behari Lal and are bound for the payment of money decree to the extent of the assets of the deceased received by them, could very well challenge the correctness of the decree and were quite competent to file the Instant second appeal.

17. The next question, which falls for determination, is whether the decree for ejectment granted against Behari Lal can be set aside in this appeal, filed by his legal representatives. The answer to this question involves the determination of Behari Lal's status at the tune of his death, i.e. whether Behari Lal's status at that time was that of a contractual heritable tenant or was he a simple statutory tenant, without leaving heritable rights. The cases referred to above and relied upon by the learned counsel for the respondent lay down that where the tenancy is determined but the tenant is still protected from ejectment on account of some provision of a statute, the status of the tenant is reduced to that of a statutory tenant.

18. Shri K. L. Misra, learned counsel for the appellant, has tried to distinguish the above cases. According to him, the case of Ganga Dutt, AIR 1961 SC 1067 (supra) involved the interpretation of the West Bengal Premises Rent Control Act, under which protection from eviction is granted to tenants including tenants whose tenancies have expired. In the case of Anand Nivas, AIR 1965 SC 414 (supra) the Hon'ble Supreme Court was considering the status of a tenant under the Bombay Rents, Hotel and Lodging House Rates Control Act, under which statute also the possession of a tenant, including a tenant whose lease has been determined, is protected, so long as he continues to pay rent. The purpose of the Bombay and Calcutta Acts, according to him, was only to regulate the rent and maintain the possession of the tenant so long as he paid the rent. On the other hand, the U. P. (Temporary) Control of Rent and Eviction Act not only controls the letting of accommodations but also. In substance, obliterates the contractual relationship of landlord and tenant According to Shri Misra, the tenancies En this State, after the enforcement of the U. P. Act, cannot be determined unless the fetters mentioned in Section 3 thereof are removed. Smt. Bhartoo's case, 1966 All WR (HC) 55 (supra) decided by this Court, is distinguished on the ground that the same was a case of fixed term tenancy, where the lease stood determined automatically by the efflux of time. In the case of Anand Nivas. AIR 1965 SC 414 (supra) it was laid down by their Lordships of the Supreme Court:--

'A person remaining in occupation of the premises let to him after the determination or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant. Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal; it is not capable of being transferred or assigned, and devolves on the death only in the manner provided by the statute. The right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sublet by him. But with the determination of the lease, unless the tenant acquires the right of a tenant holding over, by acceptance of rent or by assent to his continuing in possession by the landlord, the terms and conditions of the lease are extinguished, and the rights of such a person remaining in possession are governed by the statute alone.'

19. The whole scheme of the U. P. Act is to control the letting out of premises and to restrict ejectment of tenants. It is true that the power to allot an accommodation is given to the District Magistrate and the choice of the landlord in choosing his tenant is restricted but nonetheless it is the landlord who lets the accommodation. The District Magistrate under Section 7 (2) only directs the landlord to let or not to let an accommodation to any person. The contractual relationship of landlord and tenant, though regulated by the statute, remains. The U. P. Act does not provide the manner of determination of tenancy, for which purpose one has to fall back upon the provisions of the Transfer of Property Act. The relevant portion of Section 3, which restricts the right of the landlord, is in these words:--

'........... No suit shall without the permission of the District Magistrate be filed in any Civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds ......'

The prohibition is against filing of a suit and not from determining the tenancy. The tenancy is determined under Section 111 of the Transfer, of Property Act and a suit for ejectment can only follow the determination of the tenancy. Section 3 only postpones or defers the filing of the suit till the fetters mentioned in Section 3 are removed. The section does not create a fetter to the determination of the tenancy. The words 'no suit can be filed' in Section 3 of the Act cannot be interpreted also to mean that no tenancy can be determined. It would be adding certain words to the statute which do not exist there. It would also amount to speculating the intention of the Legislature as against the express and clear words of the statute. It has been laid down in Mahadeo Lal v. Administrator General, AIR 1960 SC 936 at p. 939 that the intention of the Legislature has always to be gathered from the words used by it, giving to the words their plain, normal and grammatical meaning.

20. The effect of determination of Behari Lal's tenancy by a valid notice was that his status became that of a person against whom no suit for ejectment could be filed till the conditions enumerated in Section 3 of the Act were fulfilled. His status technically, therefore, was that of a statutory tenant and that right in the absence of any provision to the contrary in the statute was personal only. The right to remain in possession being personal, extinguished with the death of Behari Lal. As a matter of fact the decree for ejectment itself is a dead decree. The right to remain in occupation of the accommodation being personal and having been extinguished with the death of Behari Lal, his heirs cannot in law be termed as persons affected or claiming under him and cannot challenge the dead decree even though it was a wrong decree and could have been successfully challenged by Behari Lal.

21. The result, therefore, is that this appeal succeeds in part. The decree of the lower appellate Court to the extent of mesne profits is set aside and as the decree for ejectment has exhausted itself by the death of Behari Lal, the appellants cannot claim reversal of the same and no order is passed in respect of that part of the decree. In view of my finding that the suit was not maintainable the costs of the suit throughout are awarded to the appellants.

Mukerjee, J.

22. I agree with my learned brother Gyanendra Kumar, J. that file suit has to be dismissed in its entirety. I would however, like to add a few words.

23. The action in ejectment brought by the plaintiff landlord Smt. Chandrawati against the defendant Behari Lal (since deceased) who was her tenant registered as suit No. 1029 of 1958, in the Court of the Munsif Muzaffarnagar was based on the following grounds:

(1) That the tenant had installed a flour mill in a part of the premises and thereby used the accommodation for a purpose inconsistent with the purpose of the tenancy;

(2) That the tenant had caused substantial damage to the accommodation;

(3) That the tenant had sublet the house without authority; and

(4) that the tenant had defaulted in payment of rent

24. At the hearing of the suit before the learned Munsif grounds Nos. (1), (2) and (3) were abandoned and the decree in ejectment was sought for only on the ground of default in payment of rent The learned Munsif held that there was no default in payment of rent He dismissed the suit. The learned Civil Judge, however, held otherwise. He was of the view that the tenant who was the first defendant in the suit had failed to pay the arrears of rent to the landlord within one month of the service of the notice of demand and he granted a decree to the plaintiff for ejectment for arrears of rent and for mesne profits.

25. My learned brothers Gyanendra Kumar, J. and Trivedi, J. have both held that there was no default in payment of the arrears of rent within the meaning of Section 3 of Act 3 of 1947. I respectfully concur in the view taken by them in point

26. The conclusion at which brother Gyanendra Kumar, J. has arrived as a result of his finding, that the tenant was not in default is that the suit was not maintainable at all as there was no cause of action for the suit as such, and also because there was an absolute statutory bar against the institution of such a suit, in terms of Section 3 of the Act My learned brother also remarks that the decree does not exist in the eye of law and it had no legal existence. He is, therefore, of the opinion that the suit has to be dismissed in its entirety for want of cause of action and the appeal has to be allowed as a whole with costs throughout and it has further to be declared that no valid and legal decree ever came into existence.

27. The relevant clauses of Sub-section (1) of Section 3 of Act 3 of 1947 are quoted below:--

'Subject to any order passed under Sub-section (3) no suit shall, without the permission of the District Magistrate, be filed In any Civil Court against the ten-ant for his eviction from any accommodation except on one or more of the following grounds:

(a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand.

(b) that the tenant has wilfully caused, permitted to be caused substantial damage to the accommodation;

(c) ........................

(d) ........................

(e) that the tenant has on or after the first day of October 1946 sublet the whole or any portion of the accommodation without the permission of the landlord.

(f) ........................

(g) ........................'

28. It would appear that Section 3 of Act 3 of 1947 is a bar to the filing of a suit except on one or more of the grounds set put in the different clauses mentioned in Sub-section (1) thereof. There is, however, no bar to the filing of a suit against a tenant for his eviction on one or more of the above grounds. In the present case, as already noted, the plaintiff had pleaded in the plaint that the tenant was in arrears of rent for more than three months and had failed to pay the same to the landlord within one month of the service of the notice of demand, that the tenant had caused substantial damage to the accommodation and that the tenant had sublet a portion of the accommodation without the permission of the landlord There was therefore, no bar to the filing of the suit in ejectment in other words, the bar of Section 3 of Act 3 of 1947 did not apply to the suit filed by the plaintiff. It was, however, fit to be dismissed, as the plaintiff had failed to establish and substantiate the grounds or the causes of action upon which she based her suit for the eviction of the tenant. In point of fact, the learned Munsif dismissed the suit, but the learned Civil Judge decreed the same holding that the tenant was in default in payment of rent to the landlord as contemplated in Clause (a) of Sub-section (1) of Section 3.

29. In my opinion, the decree passed by the learned Civil Judge, though wrong. In the circumstances of the case, cannot be said to be one which, 'did not exist In the eve of law.' A decree may be said to be non-existent in the eye of law when it is a nullity, for instance, when a decree is passed by a Court without jurisdiction. In such a case the decree may be ignored and challenged even in collateral proceedings. When, however, a Court having jurisdiction in respect of a suit or action passes a decree, but the decree Is a wrong one. It cannot be said to be non-existent in the eye of law. It has a valid legal existence, and it would be binding on the parties concerned if it is not set aside or reversed in due course of law.

30. In the present case, as I have already pointed out, there was no statutory bar to the institution of the suit on the grounds of the causes of action pleaded in the plaint. The learned Civil Judge decreed the suit, but as we are unanimously of the view that the decree was a wrong one, the order of the learned Civil Judge has to be reversed and the suit has to be dismissed in its entirety.

31. BY THE COURT: The appeal is allowed. The decree of the lower appellate Court is set aside and that of the trial Court restored, the suit being dismissed in its entirety with costs throughout.